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Sectional Representation on the Supreme Court Daniel S Marquette Law Review Volume 35 Article 3 Issue 1 Summer 1951 Sectional Representation on the Supreme Court Daniel S. McHargue Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Daniel S. McHargue, Sectional Representation on the Supreme Court, 35 Marq. L. Rev. 13 (1951). Available at: http://scholarship.law.marquette.edu/mulr/vol35/iss1/3 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. SECTIONAL REPRESENTATION ON THE SUPREME COURT DANIEL S. MCHARGUE* Despite the prominence of Texas and Indiana in American politics, neither state could point to one of its citizens as having been named to the nation's highest tribunal until President Truman named Tom Clark and Sherman Minton to the Supreme Court.1 Thus for the first time in the course of some 120 nominations to the highest bench were these two states honored. It is therefore of interest to examine the extent to which Supreme Court membership has been representative of the states and sections of the country and to pose the question of sectional in- fluence in determining the Presidents' choices of Supreme Court per- sonnel. In our early history sectional representation was an important factor in naming men to the Supreme Court. President Washington wrote that, "In the appointments to the great offices of the government, my aim has been to combine geographical situation, and sometimes other considerations, with abilities and fitness of known characters."'2 The diversity of residence of his thirteen nominees to the Court shows that there, as in general, Washington "... prudently consulted geography in making his ... appointments." 3 That Washington consciously took the geographical factor into con- sideration when making judicial appointments was evidenced by a letter he wrote to Edmund Pendleton referring to a rumored vacancy on the Supreme Court. Washington said, "Whenever one does happen, it is highly probable that a geographical arrangement will have some atten- tion.. ."4 In a letter written March 7, 1796, to Alexander Contee Han- son, President Washington said in part, "... it would be inexpedient to take two of the Associate Judges from the same State. The practice has been (founded I conceive in sound policy) to disseminate them *B.A., M.A., Ph.D., University of California. Instructor in Political Science and Research Associate, Institute of Public Administration at University of Michigan. 1 Texas, admitted to the Union in 1845, ranks sixth in population, while In- diana, admitted in 1816, ranks twelfth. 2 Jared Sparks, (ed.), The Writings of George Washington, Vol. XI, p. 78 (1831). Washington nominated thirteen men to the Supreme Court, as fol- lows: John Jay of New York, John Rutledge of South Carolina, William Cushing of Massachussetts, Robert Harrison of Maryland, James Wilson of Pennsylvania, John Blair of Virginia, James Iredell of North Carolina. Thomas Johnson of Maryland, William Paterson of New Jersey, again John Rutledge of South Carolina, again William Cushing of Massachussetts, Samuel Chase of Maryland, and Oliver Ellsworth of Connecticut. 3 Carl R. Fish, The Civil Service and Patronage, p. 8 (1921). ' Charles Warren, The Supreme Court in United States History, Vol. I, p. 118, 1922, citing Washington papers. MARQUETTE LAW REVIEW [Vol. 35 5 through the United States." Hence, one must agree that ". from the very beginning geography was considered an important factor in mak- 6 ing appointments to the United States Supreme Court." In two of his three Supreme Court nominations President John Adams followed the practice of selecting men from judicial circuits whose representation on the Court had been diminished. The exception was his choice of John Marshall of Virginia as Chief Justice to replace Oliver Ellsworth of Connecticut. In this and later appointments to the center chair Presidents have paid relatively less attention to the geo- graphical factor than they have in selecting Associate Justices. Pi:esident Jefferson appointed men from circuits having no repre- sentatives on the Supreme Court-namely William Johnson of South Carolina and Henry B. Livington of New York. Jefferson felt himself bound to do so, for he wrote, "The last judiciary system requiring a judge for each district, rendered it proper that he should be of the district. This has been observed in both the appointments to the supreme bench made by me. Where an office is local we never go out of the limits for the officer."7 When in 1807 Congress created a seventh circuit including Kentucky, Tennessee, and Ohio,. Jefferson nominated a resi- dent of the new circuit-Thomas Todd of Kentucky. Space precludes a detailed recital of the extent to which succeeding Presidents adhered to the principle that each circuit be represented on the bench. Likewise, the details of successive circuit reorganizations, changes in the number of Supreme Court personnel, and other factors must be omitted. However, a few of the most significant developments deserve notice. The Civil War largely upset the normal effect of the geographical factor on judicial appointments. Lincoln hesitated a long time before naming Northerners to vacancies that in the ordinary course of events would have gone to Southerners but finally did so. 10 In 1869 Congress drastically curtailed circuit riding, thus eliminating one of the main reasons why Presidents had attempted in the past to provide that each circuit be represented on the bench and that each Justice be assigned to duty in the circuit in which he was a resident. 5 John C. Fitzpatrick (ed.), The Writings of George Washington, Vol. XXXIV, p. 488 (1931-39). 6Louis B. Boudin, Government by Judiciary, Vol. I, p. 152 (1932). 7 Paul L. Ford (ed.), The Writings of Thomas Jefferson, Vol. VIII, pp. 496- 497 (1897). a 2 Stat. 420 (Feb. 24, 1807) amended 2 Stat. 477 (Mar. 22, 1808) and 2 Stat. 516 (Feb. 4, 1809). 9 For these facts see the author's unpublished doctoral dissertation, Appoint- ments to the Supreme Court of the United States, The Factors that Have Affected Appointments, 1789-1932, pp. 501-528 (U. of Calif. 1949). 10 In his message to Congress of December 3, 1861, he said, "I have been un- willing to throw all the appointments northward, thus disabling myself from doing justice to the South on the return of peace. ." See James D. Rich- 1951] SECTIONAL REPRESENTATION In 1891 Congress completely relieved the Supreme Court Justices of the obligation of circuit riding.'1 They had been forced to ignore the practice for some years because of the press of work in Washington, D. C. As had been said, "... by 1890 the statutory duty of the justices to attend circuit was practically a dead letter."'12 Though the new legis- lation made the justices "competent to sit as judges of the Circuit Court of Appeals within their respective circuits,"'1 it was noted in 1927 that ".. in recent years attendances on circuit are very rare."' 4 After Congress officially took cognizance of the fact that circuit duty was an impossibility, most Presidents felt little further need to recognize the principle that each circuit should have one of its residents on the bench of the Supreme Court. However, the factor of section representation still exerted some influence. There were 79 nominees to the highest bench prior to 1891. Of these 9 appointees were not replaced until after 1891. As to the 70 indi- viduals either simply nominated or actually appointed and replaced prior to 1891, 43 (61%) came from states located in the same circuit as that of their predecessors, while 27 (39%) did not. Subtracting the 9 incumbents from the other 50 nominations made since 1891, we dis- cover that 10 (24%) came from residences located in circuits identical to those of their predecessors, while 31 (76%) did not.'5 These figures indicate the sharply diminished influence of the sectional factor on Su- preme Court appointments. The figures with respect to the periods separated by the year 1891 would have contrasted even more pointedly had not the Civil War upset the normal practice of according weight to sectional considerations. During the years 1860-1870 inclusive, there were 11 nominees (exclud- ing Mr. Justice Field, who came from a newly created circuit). Only 4 (36%) came from states lying within the circuits of the men they succeeded, while 7 (64%) did not.' ardson (ed.), Messages and Papers of the Presidents, Vol. VI, p. 49 (1901). "26 Stat. 827 (Mar. 3, 1891). 12Felix Frankfurter and James M. Landis, The Business of the Supreme Court, p. 87 (1927). 1326 Stat. 827 (Mar. 3, 1891). '1 Frankfurter and Landis, op. cit., p. 78 n. 100. The same authors went on to note a few examples of attendances on circuit in the twentieth century. However, Roscoe Pound, Organization of Courts, 1940, p. 199 said, "But there is no longer more than a rare occasion for the circuit justice to sit in his allotted circuit." 1 Most writers on Supreme Court appointments have indicated that Lamar took White's place and that Van Devanter took Moody's place. However, a Table of Succession of the Members of the Supreme Court of the United States prepared by the Office of the Marshal of the Supreme Court, April 1, 1944, indicates that Van Devanter took White's place and Lamar took Moody's place. This succession would mean that since 1891 only nine indi- viduals had been appointed to the bench who came from the same circuits as those whom they replaced.
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